Fox v. State
289 Ga. 34
| Ga. | 2011Background
- Fox was convicted in Gwinnett County of malice murder, felony murder, and armed robbery for the death of Jerry Ann Elliott.
- Evidence showed Elliott’s pine straw business kept large cash sums at home; Fox knew the business and Elliott had seen Fox with a 9mm handgun.
- On September 28, 2007, Elliott was killed by three gunshot wounds; money, wallet, and coins were missing from the kitchen area.
- A neighbor observed a distinctive Isuzu truck later identified as Fox’s girlfriend’s vehicle; Johnson described Fox with a 9mm handgun days before the shooting.
- Fox and Johnson drove around the day of the shooting; Johnson helped conceal items and later lied to police about Fox’s involvement.
- The State sought to prove armed robbery by taking cash and the wallet with an offensive weapon; appellate courts were asked to review sufficiency of the taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the evidence sufficient for malice murder? | Fox is guilty beyond reasonable doubt. | Evidence does not preclude reasonable hypotheses. | Evidence sufficient for malice murder. |
| Is the evidence sufficient for armed robbery? | Taking with a handgun occurred during the taking. | Two equally reasonable hypotheses negate robbery. | Armed robbery reversed; insufficient evidence. |
| Was the denial of mistrial for Johnson’s testimony an abuse of discretion? | Mistrial was required to protect Fox’s rights. | Trial court did not abuse discretion; curative instruction offered. | No abuse; denial affirmed. |
| May Fox impeach Johnson with her 2004 allegation recantation and explain recantation? | Cross-examination about recantation should be allowed; needs explanation. | State may rehabilitate credibility; cross-examination permissible. | Court permitted; allowed explanation of recantation. |
Key Cases Cited
- Hicks v. State, 232 Ga. 393, 207 S.E.2d 30 (Ga. 1974) (taking must occur with force or intimidation concurrent with weapon use)
- Miles v. State, 261 Ga. 232, 403 S.E.2d 794 (Ga. 1991) (circumstantial-evidence standard; two equally reasonable hypotheses negate robbery)
- James v. State, 232 Ga. 834, 209 S.E.2d 176 (Ga. 1974) (taking occurs when property transfers control to defendant)
- Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (Ga. 2000) (rehabilitation of witness credibility after attack on credibility)